36 S.E.2d 178 | Ga. Ct. App. | 1945
1. The general grounds are without merit.
2. 3. The trial court may restrict a cross-examination to questions material to the issues, and it is not error to refuse to permit questions on cross-examination unless it appears that they are material at the time of the ruling.
4. "No proposition of law can be laid down without some implication of a state of facts as by possibility existing."
5. It is not error to refuse to give a written request where the general charge fully covers the principle involved in the request.
6. "Alibi, as a defense, involves the impossibility of the accused's presence at the scene of the offense at the time of its commission."
7. The charge of the court as a whole shows no error.
The evidence shows that Bud Heard, chief witness for the State, testified as follows: "On March 11 this year 1 was with Diamond Herd out here in Glennwood when he got cut, that *272 is in Winder, Barrow County, Georgia. I am no kin to Diamond Herd, we spell our names different, we were just friends. My brother Paul got knocked in the head; me and Diamond Herd and Allen Griffith, who is called `Little Boy,' took my brother Paul to his home, pulled off his clothes and put him to bed, and we set down. Little Boy went out and in a few minutes he come back and said, `Bud, them sawmill boys is down to Miss Julia Griffith's and I think the one what hit Paul is down there.' I asked him if he would go with me back down there. Me and Diamond and Little Boy went on out to the corner of the road. I wanted to find out what was the trouble between them and Paul. I said to Little Boy, `You know them;' I didn't, and I asked him what was their names, and he told me one was named Cleveland, and I called Cleveland, and he come up there, and I said, `Cleveland, my brother Paul got knocked in the head a while ago, . . one of the sawmill boys hit him, and I come by to see what was the trouble.' And Cleveland said, `Bud, didn't none of the sawmill boys hit him. I'll tell you what, I'll go with you to Paul's and prove to Paul didn't neither one of the sawmill boys hit him.' We made a step to go, and Jimmie Dorsey made a step closer to Diamond and said, `What in the hell you got to do with it?' and Diamond said, `I ain't got nothing to do with it, what you got to do with it?' And he said `nothing,' and Diamond run, and this boy run after him and hit him and he fell, and he got down over him and hit him in the back again. Diamond did not have anything in his hand when Jimmie cut him. Diamond did not make any attempt to hit Jimmie. Then Jimmie just goes on out the road, he never said nothing. I went to Diamond. I stayed with him, and he didn't live but just a few minutes. He never did speak. . . I don't know how many wounds was on him. I saw the wound in his chest. I could stick my thumb in it. He bled freely from the wound. . . I was close enough to Diamond to see that he did not have any weapon. I was eight steps from him, I guess. After Diamond was stabbed he run about thirty steps, I reckon. Jimmie was right behind him as he ran, and when he fell Jimmie struck him again."
The embalmer testified in part as follows: "I am a licensed embalmer. I prepared the body of Diamond Herd for burial. I found some marks on his nose, chest, and forehead, and a large incision right into his heart and two small ones in his back. The one *273 in his heart caused his death. It was about one inch long. It went all the way into his heart. The small ones in his back were about middle way down. They were about a half inch deep and along stab wounds and were about four or five inches apart."
The above evidence is substantially all that the State introduced bearing upon the actual killing, and the chief evidence upon which it relied for a conviction.
The defendant claimed justifiable homicide, and that he was not with the other sawmill boys at Julia Griffith's house; that he was at the home of one Susana Wells, and left there and was on his way to the sawmill "shack," and that as he was going along the street he saw a crowd talking, but it was dark and he did not know who they were, and as he came by them Diamond Herd was standing near where he came along, and Diamond Herd said: "Here is one of the . . s.o.b.s., I will get him." He had a piece of iron in his hand, and made "at me with it, and I throwed up my arm to keep him from hitting me. I stobbed him. I didn't mean to kill him. He scared me so bad I didn't know what to do; and one of the boys went down there where he was, and come back and said: `You done messed up that boy,' and I said, `I did,' and he said `Yes;' and I went down there and he was still breathing, and I said, `I am going to police headquarters and give up,' and I goes on up to the corner and my mind changed, and I said, `If he's hurt bad, they'll come and get me, and I'll go on home,' and I was hungry anyway, and I went on down to the shack and got something to eat and pulled off my clothes and went to bed, and shortly after I got in there the sheriff come. I was sorry I done it, but I was trying to keep him from hurting me."
The defendant introduced in support of his defense several witnesses corroborating his contentions.
The above represents the substantial contentions of the State and the defendant. There is other evidence pertaining to particular issues raised, some of which we will refer to in the discussion of the case.
1. While counsel for the defendant expressly states that he does not abandon any of the assignments of error, he really argues only one question, citing authorities on which he *274
seeks a reversal. This contention is that, under the evidence, the defendant was guilty of murder or nothing, and that, under the evidence, his conviction of voluntary manslaughter was unauthorized and the court was unauthorized to submit that question to the jury. To sustain this contention, counsel cites and relies upon the cases of Kendrick v. State,
2. Special ground 1 assigns error because, when Bud Heard, a chief witness for the State, was on the stand, the State's attorney sought to question him on cross-examination as to the cause of the brother of the witness, Paul Heard, getting knocked in the head; and also as to the continued hostile acts of the witness from the time his brother Paul was struck in the head until the time of the killing. It is stated in this ground that the purpose of this line of cross-questioning was to show the connection of the witness with the assault on Paul Heard, his brother, and his connection thereafter with Diamond Herd, the deceased. It is contended in this ground that this evidence was material to the defendant's cause for many reasons, which we will not here relate in detail except to say that it is contended in this ground in effect that the court should have permitted counsel for the defendant to have gone into more detail concerning the conduct of the witness, Bud Heard, and the conduct of the deceased from the time of a previous difficulty between other parties and the transaction now under investigation — the killing of Diamond Herd by the defendant; for the contention is that the killing in the instant case was but a continuance of the previous difficulty. In the first place, by reference to the brief of the evidence, it will be seen that the court stated, "I will be glad, of course, if you show it is material, to let you offer it again." While the ground of the motion does not set out the evidence except in a most general way, it is necessary for us to read the brief carefully *276
to understand the objection in this ground. We do not think that the defendant ever connected this testimony sufficiently to show its materiality and authorize its submission to the jury. InTrammell v. Shirley,
3. Special ground 2 complains because the court, while Bud Heard was on cross-examination, ruled out the following questions *277 and answers: "Q. Now ain't it your custom to take your shotgun and go after negroes that bother you? A. No, sir. No, sir." At the instance of State's counsel the court ruled this question and answer out. Counsel cite no authority whatsoever to sustain his contention on this ground, and we know of none to sustain it, although counsel contends that the witness had his shotgun at the time of the killing, and the movant had witnesses present to testify that it was the custom of Bud Heard to take a shotgun and go after any negroes that bothered him. This ground is without merit.
4. Special ground 3 complains of the following charge of the court: "The charge against the defendant in this indictment being murder, it becomes necessary for the court to instruct you first as to the law of murder and then as to the law of voluntary manslaughter." Error is assigned on the ground that, simply because there was a charge of murder in the indictment, it does not necessarily follow that the court should have charged it when there was no evidence to sustain voluntary manslaughter. This abstract principle of law is correct, but in this case the evidence, as stated in the first division of this opinion, demanded a charge upon voluntary manslaughter. In Yarborough v.State,
5. Special ground 4 complains of the refusal of the court to give a very lengthy request to charge upon reasonable fears and other phases of the case. We do not see that any benefit would be derived from setting out this written request. The court substantially charged the principle contained therein, not in the exact language of the request, but in a very elucidating manner as applied to the facts of this case. There is no merit to this contention.
6. Special ground 5 assigns error because the court failed to charge the jury concerning the defendant's alibi. The ground itself *278 shows that the question of alibi was not involved in this case, for it is alleged in this ground that "movant contends that he established by a preponderance of evidence that he was not at the scene of the killing before the actual killing, and was not present in the crowd of the sawmill boys at and just prior to the killing." As stated in the Code, § 38-122, "alibi as a defense involves the impossibility of the accused's presence at the scene of the offense at the time of its commission." The defendant in his statement admitted that he killed the deceased. The fact that he was somewhere else prior to that time has nothing to do with an alibi.
7. Special ground 6 complains because the charge of the court as a whole, in connection with the refusal to charge the request of the defendant, demands a reversal. With this we can not agree. Considered as a whole, the charge is without error, and substantially gave every principle of law requested by the movant that was warranted by the evidence. This ground is without merit.
The judge did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.